Louisiana Lawyer Blog

Louisiana Medical Review Panel’s Findings Not Admissible

September 13, 2011 | by Broussard, David & Moroux

The Louisiana Supreme Court recently held in McGolthlin v. Christus St. Patrick Hosp. that a Medical Review Panel’s finding is not subject to mandatory admissibility when the Medical Review Panel exceeded its statutory authority by making its determination based on of a finding of credibility.

In Louisiana, a plaintiff suing for medical malpractice is statutorily required to appear before a Medical Review Panel. La. R.S. 40:1299.47 governs this procedure. The panel is comprised of three health care providers licensed to practice in Louisiana and one attorney.

Before the panel, both parties present their case and evidence. The panel then decides whether the allegedly negligent doctor breached an applicable medical standard of care. The statute requires that the panel’s finding must be offered into evidence in court.

The Court’s holding purports to ameliorate any inequity that may result when a medical review panel exceeds its statutory authority. Now, if the panel inappropriately makes a credibility determination, the panel’s decision will carry no weight in subsequent malpractice litigation.

Fired for Facebook

September 6, 2011 | by Broussard, David & Moroux

This year, the National Relations Board (NLRB) received more than one hundred charges filed by employees who were fired for an online comment or post about working conditions, according to an analysis released by the U.S. Chamber of Commerce. The recent spike in complaints raises a novel question: Is it lawful for an employer to terminate an employee for posting negative comments about their employment on social media?

The NLRB is an independent federal government organization that investigates and remedies unfair labor practices. The NLRB protects the rights of employees to unite together to improve their working conditions, with or without a union. In the context of social media, legal issues arise when an employee posts a comment about his working conditions or wages on a public online forum such as Facebook or Twitter.

The NLRB is now considering whether federal law protects employees’ rights to post these comments about their working conditions online. If the NLRB determines that such activity is protected under federal labor law, employers will no longer be able to terminate employees who post critical comments about their working conditions online. The NLRB is expected to offer employers guidance about this issue later this year.

Until then, it is important for employees to follow company guidelines and to understand their legal rights. If you believe that your workers’ rights have been violated by your employer or union, you should not hesitate to contact an experienced attorney. For questions, contact Broussard, David & Moroux at 1-888-337-2323 (toll free) or 337-233-2323 (local).

Pearl River Toxic Water Exposure?

August 29, 2011 | by Broussard, David & Moroux

A recent untreated wastewater spill in the Pearl River killed thousands of fish. State officials are not certain how the contamination will impact the surrounding community’s drinking water; however, some officials are optimistic that the damage will not affect citizens because the Pearl River is not a source of drinking water for neighboring communities.

Nevertheless, the spill highlights the need to ensure corporations take adequate safety precautions when handling hazardous toxins in our communities. Groundwater and soil contamination pose serious long-term health consequences in affected communities. The exposure of even a small amount of a toxin can lead to cancer, neurological disorders, liver and kidney damage, immune system problems, and birth defects.

Medicare Set-Asides and your settlement

August 22, 2011 | by Broussard, David & Moroux

The Medicare Secondary Payer (MSP) statute is a federal statute that governs the receipt of Medicare payments. Under the statute, Medicare is a secondary insurer that may only be used after an individual exhausts any other available means of insurance. Accordingly, in workers compensation claims, workers compensation should be the primary source of medical insurance coverage.

The MSP statute states that if the plaintiff intends to settle with workers compensation for an amount greater than $250,000 and anticipates future medical treatment, the plaintiff must allocate a specific portion of the settlement to a Medicare Set Aside account (MSA). If the injured individual exhausts his MSA allocation, then he may receive Medicare payments. This account protects Medicare’s interests as a secondary insurer.

Being Aware of Your Digital Footprint: How Facebook Can Destroy a Case

August 15, 2011 | by Broussard, David & Moroux

Social media can be helpful tool to connect to family, friends and colleagues. However, with sites such as Facebook boasting 750 million users, pictures and posts on social media sites can easily become evidence utilized to destroy a case. Most recently, attorneys have turned to Facebook for evidence in family law and workers compensation cases, where evidentiary rules can be more relaxed.

Facebook has various features that can threaten a plaintiff’s case. For example, “wall” comments or published photos might paint a different picture than the plaintiff’s contentions in the litigation. Additionally, status updates include dates and times that can wholly contradict a plaintiff’s claims about the magnitude of an injury.

Though attorneys need to overcome significant evidentiary hurdles to utilize social media as evidence, litigants should still be cautious in posting any information online. If you or a loved one plan to bring a personal injury lawsuit, it is important to pay close attention to your digital footprint. Because privacy settings are unreliable, you should consider temporarily deactivating your Facebook account until litigation ends.

Pythons in Florida: Strict Liability for Exotic Animals

August 8, 2011 | by Broussard, David & Moroux

A Florida couple stood trial this month, facing third degree murder and manslaughter charges after their starved pet python tragically killed their toddler. In addition to criminal charges, many states, including Florida, have laws that impose strict liability on owners of exotic animals that seriously injure or kill.

Strict liability means legal responsibility for damage regardless of fault. In Louisiana, Civil Code Article 2321 governs liability with respect to wild animals and ordinary household pets. Article 2321 states that “the owner of an animal is answerable for the damage caused by the animal” but requires a showing that the owner “knew or should have known that his animal’s behavior caused the damage.” The article, however, excludes owners of dogs, stating dog owners are strictly liable for injuries caused by their dogs.

High Court Orders Tobacco Companies to Pay $270 Million

August 1, 2011 | by Broussard, David & Moroux

Tobacco companies will now have to pay $270 million for the implementation of a smoking cessation program after the U.S. Supreme Court reinstated a Louisiana court order that was unilaterally blocked by Justice Scalia last September. The Court also denied the tobacco companies’ appeal.

Louisiana smokers first filed a class action lawsuit against tobacco companies in 1996. A jury ruled in favor of the class, and a Louisiana court ordered tobacco companies to make multi-million dollar payments toward programs to help smokers quit smoking.

Although Supreme Court justices have the power to block another court’s order, the justices rarely use this power. In blocking the order, Justice Scalia cited his concern for the rising abuse of class action lawsuits in state courts. The Court recently addressed this same concern in Dukes v. Wal-Mart, rejecting a class of 1.5 million female Wal-Mart workers alleging sex discrimination.

Boating Safety in Louisiana

July 25, 2011 | by Broussard, David & Moroux

Governor Bobby Jindal recently signed House Bill 291 into law, prohibiting underage drinking in waterways. The new law also increases fines for the careless operation of a watercraft and imposes penalties for flight from an officer on water.

Until this legislation, uncertainty existed as to whether the State’s underage drinking prohibitions applied to waterways. According to the bill’s authors, the legislation is now clear: A person must be 21 to consume alcoholic beverages on a boat.

The same bill also rewrote the state’s law regarding the careless operation of a watercraft. The new law requires a watercraft’s operator to issue warning signals in fog or bad weather, to operate the boat at reasonable speeds and to maintain a proper lookout. Violations of the law may result in up to a $300 fine, 30 days in prison, or both.

High Court sides with Wal-Mart in Class Action

July 18, 2011 | by Broussard, David & Moroux

The United States Supreme Court awarded Wal-Mart a a victory recently when the Court rejected a class of 1.5 million workers alleging sex discrimination against the company. The Court held that the workers failed to prove “questions of law or fact common to the class” under Federal Rule of Civil Procedure 23.

The female workers alleged that Wal-Mart’s corporate culture institutionalized bias against female employees in the workplace. The workers asserted that this institutional bias made every female worker a victim of sex discrimination. The Court declined to address the merits of the plaintiffs’ discrimination claims against Wal-Mart.

The Federal Rules of Civil Procedure govern civil lawsuits in United States federal courts. Rule 23 sets the requirements and procedures for class action litigation. In arriving at its holding, the Court stressed Rule 23’s “commonality” requirement, a mandate that all members of a class must have a common legal claim. The opinion stated that the Wal-Mart workers’ claims encompassed “literally millions of employment decisions at once,” requiring “significant proof that Wal-Mart operated under a general policy of discrimination,” which the class failed to show.

Pharmaceutical Companies spared by Supreme Court

July 12, 2011 | by Broussard, David & Moroux

The Supreme Court insulated generic pharmaceutical companies from state failure to warn claims concerning inadequate labeling last week. The Court held that federal law preempted generic drug makers from consumer state law claims that assert generic drug makers’ failure to include adequate warning labels about possible side effects.

In its reasoning, the Court stated that generic drug companies have no choice but to comply with federal law and cannot be held liable when they fully comply with the FDA’s regulations regarding generic drug labeling. According to the opinion, federal law already requires generic pharmaceutical companies to use warning labels that are identical to their name-brand counterparts.

Preemption occurs when a state law conflicts with a federal law, rendering compliance with both laws a physical impossibility. Under the Supremacy Clause, federal law prevails and trumps state law. Due to the FDA’s extensively regulation of the drug industry, state failure to warn claims relative to drug side effects are often preempted by federal law.